Closing Loopholes Act 2023 - NEW FDV and Union Delegates Protections

By Madaleine Ziegler, Workplace Relations Advisor, Business Chamber Queensland

Overview 

The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) (‘the Act’) came into effect on 14 December 2023 and amended the Fair Work Act 2009 (Cth) ('FW Act'). The Act introduced significant changes such as strengthening the protections for particular employees, including those who are:  

• Subjected to family and domestic violence (FDV); and  
• Workplace delegates (union members employed at the workplace).  

The above changes commenced in the FW Act on 15 December 2023 (the day after Royal Assent). As such, employers must understand their obligations to ensure they are compliant. This article provides an overview of the new protections and what they mean.  

Protections for employees subject to Family and Domestic Violence (FDV)  

All employees have the right to be free from discrimination at work based on protected attributes. The Act introduces ‘subjection to family and domestic violence’ as a protected attribute in the FW Act.  

The Act establishes protections against discrimination for employees (both current and prospective) who have been, or continue to be, subjected to FDV by: 

• Introducing an additional protected attribute;  
• Expanding the unlawful termination provisions; and  
• Prohibiting the inclusion of certain terms in modern awards and enterprise agreements.  

Employers are prohibited from taking adverse action against an employee (either current or prospective) on the basis of that the employee is subject to FDV. Examples of adverse action include but are not limited to: 

• Dismissing an employee;  
• Refusing to hire a prospective employee;  
• Disadvantaging an employee by altering their job (e.g. reducing their hours); and  
• Discriminating between existing employees. 

Scenario: employer X is aware that one of their employees (employee Y) is being subjected to FDV.

In this instance, employer X will need to ensure that any proposed actions or decisions taken in respect of employee Y, do not constitute adverse action under the Fair Work Act 2009 (Cth). If potential adverse action is taken by employer X, they must have a lawful basis to do so, and it must not be because of employee Y’s subjection to FDV. Also, employer X will need to have evidence which demonstrates the lawful basis on which they acted.  

It is unlawful for employers to terminate an employee’s employment on the basis of subjection to FDV. This potentially widens the scope for employees who have been terminated to dispute the lawfulness of their termination. 

Scenario: employee B lodges an unlawful termination claim against employer C 

In this instance, employer C must be able to show that employee B’s employment was terminated for a lawful reason (e.g. serious misconduct) and not because employee B was subject to FDV.    

Employers are also prohibited from including terms that discriminate against an employee or employees because of, or for reasons including, their subjection to FDV in proposed enterprise agreements. When drafting an enterprise agreement, employers must be cautious not to use any discriminatory terms, particularly terms that could indirectly discriminate against those who are the subject of FDV (either currently or previously). For example, bonuses that are solely based on attendance levels might indirectly discriminate against employees who have taken time out of work (e.g. FDV leave or personal leave – sick and carer’s leave) to deal with the impacts of FDV.  

Protections for Workplace Delegates 

Certain rights are protected by the Fair Work Act 2009 (Cth). This includes but is not limited to:  

• Workplace rights;  
• The right to engage in industrial activities; and  
• The right to be free from unlawful discrimination.  

The Act introduces new rights and protections for workplace delegates. Under the Act, a workplace delegate is a person who is appointed or elected, as per the rules of an employee organisation, to be a delegate or representative for members of the organisation who work in a particular enterprise. 

The Act establishes the rights of workplace delegates as workplace rights. Such rights are protected from various unlawful actions (e.g. adverse action). Under the Act, the rights of workplace delegates are as follows – a workplace delegate is entitled to:  

• Represent the industrial interests of members (both current and prospective) of the union or employee association, including in disputes with their employer;  
• Reasonable communication with members (both current and prospective) of the union or employee association in relation to their industrial interests;  
• Reasonable access to the workplace and workplace facilities to carry out their duties as workplace delegates; and  
• Reasonable access to paid time during normal working hours for the purposes of related training (small business employers i.e. those with 14 or fewer employees, are excluded from this obligation). 

 The Act introduces further protections that prohibit employers from engaging in certain behaviours when dealing with workplace delegates. Employers are not able to take adverse action against an employee for exercising their rights as a workplace delegate, otherwise, they will be in breach of the General Protections provisions in the FW Act. Employers must not:  

• Unreasonably fail or refuse to deal with a workplace delegate;  
• Knowingly or recklessly make a false or misleading representation to a workplace delegate; or  
• Unreasonably hinder a workplace delegate from exercising their rights. 

In the event of any proceedings, employers will bear the onus to demonstrate that their conduct is not unreasonable. Employers who breach the rights of workplace delegates may be liable under the General Protections regime of the FW Act.   

What's next for businesses? 

To ensure compliance, Business Chamber Queensland recommends that employers review and update their policies/procedures and provide adequate training to staff, particularly managers, so they understand what is required of them as they manage employees subjected to Family and Domestic Violence. Similarly, they must understand the rights and protections afforded to Workplace Delegates to ensure compliance with specific requirements in how communication and access to information is to be handled. 

Should you have any questions or concerns regarding these changes, please contact the Workplace Advisory Service for advice by phone or email - 1300 731 988 | [email protected] 

Business Chamber Queensland will update its members on any further developments as necessary. If you would be interested in attending a webinar on the proposed changes to casual employment, register your interest here. Members as well as non-members wanting to know more are encouraged to express their interest. 

If you have any questions or concerns about the upcoming amendments of the Fair Work Legislation Amendment (Closing Loopholes) Act 2023, or would like to know more about the resources available to members, please contact the Workplace Relations on 1300 731 988 or at [email protected]